Medicine starts to see down side of patents

(MouseTrap. It's more than a Christmas gift. By Hasbro.)

Patents make good sense in medicine. Drugs and devices take money to develop. Patents offer good protection without hampering innovation.

Patents don't make good sense in software. They wind up covering the idea of something, not just a specific expression of it.

I call this the "mousetrap test." You should be able to patent a mousetrap but not the idea of killing mice. Too often software fails the mousetrap test.

Well, this down side of patents are now moving into medicine as software patents are awarded on medical software.

Here's one. Zynx Health, a unit of Hearst, has just won a patent for its software "to establish and maintain an evidence-based best practice approach to providing patient care." If you're scoring at home it's number 7,822,626.

If this just covered the way Zynx Health works there might be no problem. But that's not the way software patent law seems to work.

Bringing best practices, based on clinical evidence, to the patient's bedside is very important. A computer network can hold much more data than any doctor or nurse's memory, and as practices change it can adapt quickly, without even a weekend of coursework.

Every large health IT company is now working on collecting the evidence, on algorithms to analyze it, on ways to deliver it, and on its presentation. Can Zynx now take them all to court?

I hope not, but even the threat of such a move has a chilling effect. It can dissuade start-ups, it can turn capital away from good ideas, and it only makes lawyers rich if we're arguing about a company's rights to do something that's necessary.

Also, while the folks at Zynx may be saints, anxious only to protect their own software algorithms, what if the company should fail? This asset might be picked up, years from now, by a company that's little more than a glorified law firm, a "patent troll" anxious to tax an idea after it is proven in the market.

That's the way it is in software. That's the way it may get to be in medicine, unless the two industries get together and find a way to make the "mousetrap test" law.